Tag Archives: preemption

(The following is excerpted from an articlewrittenby Villanova University Law Student John W. Polonis. The article speculates on what may be the direction that the ongoing concussion litigation takes between former NFL players and the league.)

“Four thousand plus plaintiffs in the NFL Concussion Injury Litigation face an uphill battle to survive preemption and pursue their state law claims. United States District Court Judge Anita Brody, of the Eastern District of Pennsylvania, recently heard oral argument on the NFL’s Motion to Dismiss. Plaintiffs accuse the NFL of fraud, wrongful death, negligent misrepresentation, negligent conduct, failure to warn, loss of consortium, as well as negligent hiring and retention. They seek money damages, declaratory relief, and an NFL-funded medical monitoring program.

Before any discussion of the merits, Judge Brody must resolve one threshold issue: preemption. Armed with the Collective Bargaining Agreement (“CBA”) between it and the NFL players’ union (“NFLPA”), the NFL will likely prevail in its Motion to Dismiss. If successful, the NFL could litigate this much bally-hooed case before an arbitration panel.

This litigation, so asserts the NFL, centers on workplace injuries governed by federal labor law, not personal injuries, governed by state law. For the NFL to prevail with its preemption affirmative defense, it must show that Plaintiffs’ claims will require the court to interpret the meaning of a specific provision of the CBA. Thus, the NFL must argue that Plaintiffs’ state law claims – whether based on negligence or fraud – are “substantially dependent upon” or “inextricably intertwined” with the terms of the CBA, or that they arise under the CBA.

Although defendants do not generally prevail on motions to dismiss by relying on affirmative defenses, the NFL may succeed here because of the uniform application of federal labor law. Generally, federal courts defer to the parties’ agreed-upon grievance procedures rather than taking on a workplace injury case. To prevail the NFL must convince Judge Brody that Section 301 of the Labor Management Relations Act (LMRA) precludes plaintiffs’ tort claims because player injuries, including traumatic head injuries, amount to nothing more than workplace injuries governed by the CBA and thus federal law.”